This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

In section 38 Canada Evidence Act proceedings involving Abdullah Khadr, Justice Mosley ordered on January 15, 2008 the appointment of a security-cleared amicus curiae to attend the ex parte proceedings, view the secret information and test the government position. Abdullah Khadr (brother of Omar Khadr, the Canadian detained at Guantanamo Bay) is in the midst of extradition proceedings involving the United States in which national security information is at issue, triggering the section 38 process.

Justice Mosley did not decide the issue of whether such an amicus is constitutionally required under section 7 (a position suggested in the earlier Federal Court case of Khawaja, but then made uncertain by the Federal Court of Appeal's decision in that case). Rather, he relied on the court's inherent jurisdiction to appoint an amicus to assist in its deliberations. The decision suggests that such an appointment will be an unusual exercise of this power. However, on the facts in this case, the appointment was warranted. Among the considerations cited by the court:

that the underlying proceeding involved an extradition in which Khadr had a limited ability to challenge the case and in which the potential penalty, upon conviction in the United States, was imprisonment well in excess of his life span.

that the evidence employed by the United States in support of the extradition may have been obtained through torture and illegal detention;

that the safeguards to preseve a fair trial in the Canada Evidence Act where information is withheld in underlying proceedings for national security reasons would not be applicable in a U.S. proceeding subsequent to an extradition; and,

that the Attorney General is, in effect, in an adverse position vis a vis Khadr as the agency with carriage of the extradition proceeding on behalf of the United States.

The amicus was appointed in a capacity that would see them presenting issues favouring the disclosure of the information, and in that respect can be said to be acting for Mr. Khadr. No solicitor-client relationship will, however, exist. Moreover, continued contact between the amicus and Mr. Khadr after the former has seen the secret information will be permitted only by court order.

In this last respect, the regime constructed in this case resembles that anticipated by Bill C-3. Of particular interest are the circumstances and constraints the the court will impose on continued contact between the amicus and Khadr. Developments on this point will likely give some sense at to how the Federal Court will approach the identical issue in relation to special advocates under Bill C-3, if enacted. As noted elsewhere in this blog, the effective absence of continued access in the United Kingdom special advocate system has gravely undermined the credibility of that system.

Since research for NSL was completed, there have been several developments in US ITAR export controls and employment by Canadian defence contractors of dual nationals with a nationality from a state on the US proscribed list. First, in May 2007, the Department of National Defence (DND) announced a settlement with the U.S. government permitting DND “personnel” with the problematic nationalities to be omitted from the ITAR rules. As described by DND, “access to defence articles and services exported under the ITAR will be granted to DND personnel who are Canadian citizens, including dual nationals, who have a need to know and a minimum secret-level security clearance. DND personnel include Canadian Forces members, civilian employees, embedded contractors, and employees of other government departments working within DND. Canadian standards and procedures will continue to be used to process security clearances.”

Second, in July 2007, the Ontario Human Rights Commission announced a settlement in the several human rights complaints that had been brought against General Motors by dual nationals (with a nationality from an ITAR proscribed state). As described by the Commission, “[m]onetary remedies were provided to the complainants. Under the settlement, General Dynamics Land Systems Canada Corporation will continue with its practice of making all reasonable efforts to secure such lawful permission as may be obtained to minimize any differential treatment for such employees.”

Most recently, on January 18, 2008, a similar settlement was announced in a human rights complaint brought against Bell Helicopter in relation at the Quebec Human Rights Commission. In reporting the settlement, however, the Commission also underscored “its opposition to the application of the ITAR rules in Québec because of their discriminatory impact. It has conducted a legal analysis of the rules and concluded that they include requirements that are inconsistent with the Québec Charter of Human Rights and Freedoms. More specifically, they infringe the right to equality without discrimination based on ethnic or national origin.”

Given this observation, it seems certain that compliance with ITAR dual nationality rules will continue to raise human rights difficulties for Canadian defence contractors unless some sort of settlement on the issue is reached between the Canadian and U.S. governments.

In an open letter to Foreign Affairs Minister Maxime Bernier released today, forty-seven law professors from around Canada called on the government to intervene in the case of Omar Khadr and raise issues of international law concerning child soldiers. This call comes as these and other Canadian law professors and a score of Canadian parliamentarians prepare to file their own intervention Friday on the child soldier issue in the trial of Omar Khadr at Guantanamo Bay. This letter is available here.